I know, I am not Spanish, and perhaps this subject is very boring for my (mostly British) readers. I am only Spanish by marriage, and through friendships. But rarely have I felt so strongly about a legal injustice as what happened last week in Madrid.
On Thursday night, I was struggling to remember the last time I felt so frustrated, for comparison. I think it was probably when the Stephen Lawrence murderers got off, a wrong which has now been righted, at least in part. But in some ways, abhorrent though that was, this is worse. It is worse because this was not an issue of someone guilty walking free, but of someone who is innocent being deliberately convicted to get them out of the way. For a start, alarm bells start ringing when, unprecedentedly, as the New York Times observes:
“The Spanish prosecutor’s office has actively opposed both trials, saying there were no grounds for a criminal case. During the trial, it called for the charges to be dismissed because they had no basis in law.”
Judge Garzón, who is now barred by Spain’s Supreme Court from practising as a judge for eleven years and has no right of appeal, is being prosecuted on three separate charges: overstepping his authority in opening the door to proper burials for victims of Franco-era massacres; a conflict of interests regarding sponsorship of of a legal seminar by Banco Santander; and of phone-tapping between detainees and lawyers in the Gürtel corruption case.
The first – brought, unbelievably, by two political organisations of the far right – clearly contravenes a universal legal principle, that there can be no amnesty for crimes against humanity (a position upheld by the UN).
The second is laughable, given that the University of New York has clearly affirmed that such payments never existed, and no record of them has ever been produced.
Many think that these first two cases, still in progress, may now fall, but this does not matter for Garzón’s enemies, as he has just been convicted of the slightly more complex legal point of the third. And one victory was all they needed to destroy his career.
More importantly, if you scratch the surface of that complexity, the judgement on this third case is still patently wrong. It is legal in Spain for a judge to tap phones, if there is a reasonable suspicion of serious wrongdoing (a suspicion which was, incidentally, clearly vindicated in this case: the phone conversations revealed in the Gürtel case showed a shocking level of corruption in the Valencian government). Going against that is the privacy of lawyer-defendant communications, in that obviously it would not be fair for a prosecutor to use in court a discussion of a legitimate strategy for defence. The court charged that Garzón had violated the right to a fair trial for the defendants.
So, what actually happened? Using the principle of the privacy of lawyer-defendant communications as a cloak, the detainees were using their allowed phone calls from prison to their lawyers to continue their corrupt business: the moving of assets abroad and so on. Garzón had to make a decision to either tap the phones or not, and he felt he was covered by the law to do so.
However, just to be sure, he made a specific exclusion for any defence-related material not to be used in court, so as to ensure the defendants retained their right to a fair trial. The only phone-tapped material which could be used would be that unrelated to the defence (which, frankly, is all that a defendant should be talking to a lawyer about from prison, anyway). In other words, he kept not only to the letter of the law, but its spirit as well, specifically ring-fencing defence-related conversations and thereby guaranteeing fair use of the phone-tapped material.
As Garzón himself said in his statement last Thursday:
“The sentence does not say at any moment what is the harm effected to the right to a fair trial, and it does not say so, simply, because it does not exist. It is invented.”
There is, sadly, a recent European precedent for the Establishment closing ranks against a judge: 1990s Italy, where the corruption reached epidemic levels and only the brave actions of magistrate Antonio Di Pietro and his colleagues managed to get it, at least partly, under control. But, in the process, that same magistrate spent years in the courts proving his innocence on trumped-up charges brought by friends of Berlusconi. The prosecution of Garzón, who in many ways has done for Spain what his friend Di Pietro did for Italy, has unpleasantly strong echoes of manus puli – the infamous “clean hands” era – about it.
Yes, Thursday, 9 February, 2012. A great day for corruption and all those who practise it. And a tragic, wretched day for Spain, the legitimacy of its legal system and for people fighting corruption everywhere.
Shame on you, Supreme Court. Shame. On. You.
It is not boring. I have been stuck in Belfast and Dublin these last few days!